The Columbian. [volume] (Bloomsburg, Pa.) 1866-1910, 1887-12-09
THE FISH CASE.
COMMONWEALTH VS. d. NJ. KiNTER

The defendant was arrested for
catching trout out of season, and was
convicted and sentenced by justice
of the peace. The case was brought
into court on q certiorari, and Judge
Elwell delivered the following opinion
on Monday morning, discharging the
defendant
The record in cases OF summary con-
viction by justice of the peace for
the violation of penal law must con-
tain within itself a statement of guilt
of the defendant with so much of
clearness and certainty as to show
jurisdiction both of the person and the
subject matter. This is the rule in
civil cases, McCabe vs. Culp 8 Pbila.
$50 aud has long since been consider
ed text law in summary proceedings to
recover fne or forfeiture imposed by
a statute for doing any prohibited act.
In Commonwealth vs. Borden IL
Smith 275 Mr. Justice Agnew, quot
ing Burns justice says, ''If the person
is found guilty there must be con-
viction, Judgment and execution, and
the evidence against him must be such
as the common law approves of, unless
the statute expressly directs otherwise.
Aud in conclusion there must be q
record of the whole proceedings,
wherein the Justice must set forth the
particular manner and circumstances,
so if he be called to account for the
same by superior court il may appear
that he has conformsd 10 the law, and
not exceeded the bounds presented to
his Jurisdiction. All this is reasonable
and seems to be necessary to bound
arbitrary power, and prevent oppress
ion and injustice, to the citizen. Aud
again on page 276 the Judge says,
"We have never held that less than
the essential parts or particular sub
stance of the whole testimony should
be set FORTH" This view of of the law
is sustained by reference to numerous
cases among them Commonwealth VS.
Nesbit 10 Casey 39S, in which the law
and practice of the Court is thus stated
10 the opinion of the Court, "When
tie record contains no definite, but
only legal conclusion from unrecorded
facts superior Court cannot without
compelling return of the evidence or
testimony, decide whether the legal
conclusion of the officer be right or
wrong In such cases 1t usually re-
verses the conclusion, because no act
appears upon it that justifies the judg-
ment."
Tested by these we'll established
rules of law and the uniform practice
of the Courts, this record is fatally
defective. The names of several wit
nesses for the prosecution appear in
the record, but neither their testimony
at length if they gave any, nor the
substance of the evidence for the CON-
mouwealth is returned by the justice.
This of itself is error for which the
Judgment must be reversed
The record of the conviction fails to
show when or where the offense chsrg-
ed was committed After setting forth
the arrest of the defendant aud other
matters preliminary to the hearing,
and after stating that witnesses we're
sworn the record of conviction follows
in these words: ''After hearing the
evidence in this case, the justice finds
the defendant guilty of killing and
having in his possession twenty speck-
led trout aud sentenced to pay a fine
of two hundred dollars and costs of
suit" Commitment issued March 5,
1886 to q. w. Knouse Const. returned
May 81, 1887, defendant not found
called in by plaintiff to be transferred.
Same day commitment issued to M. E.
Cox Const. of Bloomsbury
For anything that appears in this
record the act of the defendant in hay-
ing speckled trout in his possession
may have been within the month when
it is lawful TO kill trout or have them
in possession. The place where he
had them may not have been within
the jurisdiction of the justice. The
record as we find it may have been
literally true, and the defendant inno-
cent of any penal act. Again the act
although illegal may have been COM
nitted in some other county. But it
may be said that all this is supplied by
the information which sets forth time
and place with reasonable certainty,
and this would be so if the Justice 10
the judgment of conviction had re-
ferred to the information, and found
the defendant guilty as therein charg
ed. In Commonwealth vs.. Borden
supra the record was sustained solely
on the ground that the reference to the
int Ia af he IL
ment of correction. In the absence of
such reference and in the absence OF
evidence showing that the information
was sustained thereby the conviction
was clearly erroneous. 1t would be
well for justices of the peace in Cases
of summary convictions to obtain and
follow substantially the approved form
in the case last cited. Instead of a
Jumping fine it would be much better
if not actually necessary, that the de.
fendant should, in words, be adjudged
to forfeit and pay ten dollars for each
and every trout 80 killed aud had in poss
ession by him, in the whole amounting
etc. to be collected and distributed as dir
ected by the Act of Assembly of 1873
~ 10 uoN ucOCoshiJ tudI Int seuJtuCt
should be in the alternative TO pay the
fine or pc committed, but it is essen
tial that this alienation should be con
taned in the warrant of commitment
The warrant in this case was erroneous
in that it commanded the sheriff t.
keep the defendant two hundred dayl
in the county Jail 1t ought to hav,
authorized the sheriff to receive tn,
fine and to keep the defendant in Gus
tody one day for each dollar of fin,
unpaid. 1t was not necessary tina
either the judgment of conviction o
the warrant of commitment should dis
tribute the fund The law does tina
withou' the aid of an adjudication.
There are several exceptions BY
counsel for the defendant which / hav,
not deemed 1t necessary to discuss
The case is to be reversed upon th,
grounds above set forth. | add how
ever for the benefit of magistrates tha
when a continuance of the hearing il
a penal action is had reoognizanc,